Citation Nr: 0309391
Decision Date: 05/21/03 Archive Date: 05/27/03
DOCKET NO. 98-09 417 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUES
1. Entitlement to a higher initial rating for service-
connected major depression, currently evaluated 30 percent
disabling.
2. Entitlement to a total disability compensation rating
based on individual unemployability (TDIU rating).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
C. L. Wasser, Counsel
INTRODUCTION
The veteran served on active duty from October 1979 to August
1980.
This case comes to the Board of Veterans' Appeals (Board), in
part, on appeal from a March 1997 decision by the RO in New
York, New York, which granted service connection and a 30
percent rating for major depression, as secondary to service-
connected angina pectoris; the veteran appealed for a higher
rating. This case also comes to the Board on appeal from a
December 1997 rating decision which denied entitlement to a
TDIU rating. A personal hearing was held before an RO
hearing officer in October 1998. The veteran initially
requested a hearing before a veterans law judge, but withdrew
his request at his October 1998 RO hearing.
REMAND
In September 2002, the Board undertook additional development
of the veteran's claims for entitlement to a higher rating
for depression, and for a TDIU rating pursuant to authority
granted by 38 C.F.R. § 19.9 (a)(2) (2002). In Disabled
American Veterans v. Secretary of Veterans Affairs, Nos. 02-
7304, -7305, -7316 (Fed. Cir. May 1, 2003) the United States
Court of Appeals for the Federal Circuit (Federal Circuit)
invalidated 38 C.F.R.§ 19.9(a)(2) (2002). As such, although
the Board has obtained VA medical records and reports of VA
examinations conducted in February 2003, in light of the
Federal Circuit's decision, the case must be remanded for
readjudication by the RO and for preparation of a
supplemental statement of the case. Moreover, the Board
notes that the report of the February 2003 VA psychiatric
examination includes only pages 1 and 6, and is missing pages
2 through 5. The RO should attempt to obtain the missing
pages. If this is not possible, another VA psychiatric
examination should be performed to evaluate the veteran's
depression. 38 U.S.C.A. § 5103A (West 2002).
After the above actions have been completed, the RO should
review the veteran's claims with consideration of any
additional evidence received since the April 2001
supplemental statement of the case. 38 C.F.R. § 19.31
(2002).
In September 2002, the Board sent the veteran a letter
informing him of the Veterans Claims Assistance Act of 2000
(VCAA), and informing him that he had 30 days to respond to
the notice. The Federal Circuit basically held that this
type of notice was invalid as it was contrary to 38 U.S.C.A.
§ 5103 (a), which provides the veteran has one year to submit
evidence in such a situation. Accordingly, the RO must cite
to the VCAA, and in particular, cite to 38 U.S.C.A. §§ 5103,
5103A (West 2002).
In light of the foregoing, the case is remanded to the RO for
the following action:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002) are
fully complied with and satisfied. See
also 38 C.F.R. § 3.159 (2002).
2. The RO should contact the veteran and
obtain the names and addresses of all
medical care providers, VO or private,
who treated the veteran for any of his
service-connected disabilities since
December 2002. After securing the
necessary release, the RO should obtain
these records. If any records cannot be
obtained, it should be so documented in
the claims folder.
3. The RO should attempt to obtain pages
2 through 5 of the February 2003 VA
psychiatric examination. (Pages 1 and 6
are of record.) Only if such pages are
unavailable, the RO should schedule the
veteran for another VA psychiatric
examination. The examiner should be
asked to review the claims file, and to
comment on the current level of severity
of the veteran's service-connected
depression, as distinguished from his
non-service-connected personality
disorder or any other current psychiatric
disorders.
The examiner should be asked to opine as
to whether it is at least as likely as
not that the veteran's service-connected
psychiatric disorder, in light of his
educational and vocational history and
without regard to age, precludes all
forms of substantially gainful
employment.
4. Thereafter, the RO should readjudicate
this claim. In doing so, the RO should
review all of the evidence received since
the April 2001 supplemental statement of
the case, including the reports of VA
examinations conducted in February 2003,
and readjudicate the veteran's claims for
entitlement to a higher rating for major
depression, and for a TDIU rating. If the
claims remain denied, the RO should
provide the veteran with a supplemental
statement of the case. The supplemental
statement of the case should cite the
relevant portions of the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000); see 38
U.S.C.A. §§ 5103, 5103A (West 2002). The
supplemental statement of the case should
also cite the implementing regulations for
the VCAA, which were also made effective
November 9, 2000, for the most part. 66
Fed. Reg. 45,620 (Aug. 29, 2001) (codified
at 38 C.F.R. §§ 3.102, 3.159). If
additional evidence is requested, the RO
should inform the veteran that he has one
year to respond.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).